All the Presidents' Lawyers

It’s been more than three years since Josh Barro and Ken White started All The President’s Lawyers (the first name of this show) to explore the legal problems of then-President Donald Trump, and wow, did he have legal problems. He still has legal problems, but he’s no longer president, and it’s time to wind down this very fun show.

On this final episode, Josh and Ken update us on where the main characters are now: Trump himself, Michael Cohen, and more.

Thanks for listening to All The President’s/s’ Lawyers.

Just 22 days after Steve Bannon was referred to the Department of Justice for contempt of Congress, we have an indictment. Is that a long time? No, very much not. Ken says that’s the speed you’d expect for someone who’s robbed a break or something “showy that involves guns.” What happens next? What does the government have to prove here? And what message does this send to the other people defying subpoenas?

Then: Summer Zervos, a former contestant on “The Apprentice,” has dropped her long-running defamation lawsuit against former Presidnet Trump, not long before he was supposed to finally be deposed. Zervos accused Trump of groping her at the Beverly Hills Hotel in 2007, and in 2016, Trump denied meeting her or greeting her inappropriately. She sued him for defamation, and he successfully delayed the litigation through his presidency. Lately though, it appeared that lawyers were negotiating his deposition. Now Zervos’s lawyers say she “no longer wishes to litigate against the defendant and has secured the right to speak freely about her experience.” Josh and Ken read the tea leaves here.

Plus: an update on the National Archives documents, Alex Jones, and Sidney Powell and the curious story of the supposed capture of CIA Director Gina Haspel…(what???)

There’s been another indictment in special prosecutor John Durham’s investigation of the investigation into links between Donald Trump’s presidential campaign and Russia. It’s another indictment for false statements to federal officials, this time of Igor Danchenko, a Russian national and Russia analyst who was one of Christopher Steele’s sources in assembling the infamous dossier. The thrust of the allegations in the indictment are that Danchenko lied to FBI investigators about where information that ended up in the dossier came from, and it looks like most of his information came from one political operative.

The indictment itself is long, it’s detailed, and it seems like it’s making an argument, and it also seems like it makes a strong case for how some false statements prevented the FBI from accurately evaluating the information provided. Josh Barro and Ken White analyze this second indictment from Durham and what this shows about how the FBI and the media handled the information in the dossier. Does former President Trump have a point about this being a “witch hunt”?

Plus: a judge gets an unusual and pretty annoying request from the Trump legal team, a Capitol riot suspect fled to Belarus because his lawyer advised it (he claims) and another wants to ask a judge’s permission to take a paid-for vacation, and the Schlapp legal fund.

We now know which documents former President Trump is seeking to block from the January 6 select committee: the White House daily diary, which would show his movements and meetings; phone records and records of his senior staff, and a few other documents, including a draft of a speech for the “Save America” rally, a handwritten note, and more. Trump is asserting executive privilege, which is a kind of made-up doctrine but everyone still agrees that former presidents still have some executive privilege anyways. What we do know based on precedent is that the public’s interest in having information will be weighed against the former president’s interest in keeping things secret, but does analysis of whether the former president was up to no good factor in to that? 

We now have the January 6 committee putting some requests for documents on hold, and it sounds like they may be doing that after discussions with the Biden White House. What is the strategy behind this? And if there is a big dispute over executive privilege, is that likely to end up in front of the Supreme Court eventually?

Plus: did you know there’s a Trump SPAC? Rudy claims three documents out of more than 2,000 seized in the FBI raid on his home and office may be privileged, and the January 6 judges continue speaking their minds.

This week, Josh Barro and Ken White catch up on a few familiar characters and tie up some loose threads.

Lev Parnas, former associate of Rudy Giuliani: convicted of six counts of charges related to funneling and concealing political contributions. There was speculation about whether Parnas himself would take the stand — Ken talks about when that’s a good idea and when that’s very much not a good idea.

Michael Avenatti: still a free man for now, but indicted on four sets of trials, and one of them ended in a mistrial several weeks ago. The government failed to disclose some evidence and now Avenatti is entitled to a new trial with that new evidence. But Avenatti is making a double jeopardy claim: that he has a constitutional right not to be tried twice. This is a thin argument — Avenatti may be working another strategy — and long story short, the Ninth Circuit agreed to a expedited briefing schedule.

John Eastman, lawyer and author of the now-infamous (at least to our listeners) Eastman memo laying out how Vice President Mike Pence could maneuver to keep Trump in office: sitting for extended interviews about the circumstances of that memo and whether it reflected his views. Was he acting as a lawyer in those moments? And would that be a shield for him?

Steve Bannon, former Trump adviser and pardon recipient: held in criminal contempt by the House of Representatives and referred to the Department of Justice. What does that mean? And is it a boatload of work for the DC U.S. Attorney’s office, which has its proverbial hands full with January 6 prosecutions?

Former President Trump has sued the National Archives and the chairman of the January 6 investigating committee, Congressman Bennie Thompson, to try to prevent the disclosure of White House papers, records and communications up to and during the riot. He’s asserting executive privilege. What does that mean again? Where does the idea of executive privilege come from, and how are the interests weighed in a situation like this? And then...does a former president have a strong executive privilege claim? That’s a not-very-well-explored question.

Trump is also instructing former advisers, including Steve Bannon, not to comply with subpoenas from the committee. Bannon hasn’t been complying and so the committee voted to make a criminal referral to the Justice Department for contempt of Congress. Does that mean the Sergeant at Arms has a job to do? (Not just yet.)

Plus: President Trump is deposed for more than four hours, New York’s new anti-SLAPP law and the Summer Zervos lawsuit, Lev Parnas’s ongoing trial, and Congressman Fortenberry is indicted.

This is a special episode of All the Presidents’ Lawyers with Carissa Byrne Hessick, professor of law at the University of North Carolina. As we’ve discussed previously on the show, some federal judges have been wondering (sometimes aloud, in their courtrooms) whether the Capitol Riot defendants are getting off too easy. More than six hundred people have been charged so far — a few with felonies and most with misdemeanor charges. Of those charged, about one hundred people have accepted a plea bargain. There are a lot of reasons why plea bargains are part of the American justice system, but is plea bargaining good? With how overwhelmed D.C. courts are, how are prosecutors thinking about getting defendants to just plead guilty? And what’s the political messaging behind these cases? Carissa Byrne Hessick says plea bargaining is a bad deal and she’s here to talk about it.

Former President Donald Trump has sued Twitter trying to get back on the platform. His suit says Twitter violated his First Amendment rights and that they broke a new Florida law that purports to prohibit social media companies from being banned in a manner inconsistent with the companies’ internal policies. The thing is, the First Amendment applies to the government restricting free speech and Trump’s theory is that Twitter is a state actor. When would a private entity be considered a state actor? Is there a case to be made that Dominion Voting Systems is a state actor? One group of people thinks so, and they’ve filed a new class action lawsuit against Dominion Voting Systems that says the cease and desist letters the company sent them after the 2020 elections are RICO. Ken, is it RICO?!

Plus: a detailed report on whether Trump is really at risk of state charges in Georgia, Matt Gaetz’s legal team, Dan Scavino evades a subpoena from a congressional committee.

What is ‘Trump Derangement Syndrome’? It’s a condition that afflicts conservatives and liberals alike – and lawyers in particular. This week, Ken White and special guest David Lat discuss the attorneys that, uh, have gone astray defending Donald Trump.

Ken White and special guest David Lat discuss Jeffrey Clark, who tried to oust fellow Jeffrey (Rosen) as acting attorney general and get Georgia to change its election results. John Eastman, a respected attorney and former clerk to Supreme Court Justice Clarence Thomas, is now under fire for a memo he wrote outlining six steps for handing the presidency back to Donald Trump. Perhaps two of the most public examples of what David calls TDS are that of Rudy Giuliani, once the U.S. Attorney for the Southern District of New York and “America’s mayor,” and Sidney Powell, a top law school graduate and respected appellate attorney, who is now most known for representing Michael Flynn, legal challenges of the 2020 election, and being sued for defamation by Dominion Voting Systems.

John Durham, the former US attorney who was appointed special counsel to investigate the origins of the investigation into the 2016 Trump campaign and its alleged connections to Russia, has turned an indictment. A grand jury has indicted Michael Sussmann, an attorney at election law firm Perkins Coie, for making false statements to federal officials. Good lawyers and listeners of this podcast know that’s 1001 violation. But what’s unusual about this one? Ken and Josh talk through the interesting points of this indictment.

Then: John Eastman, a lawyer for the Trump campaign, produced an internal memo arguing that former Vice President Mike Pence had the legal and constitutional authority to set aside the results of the election and declare Donald Trump the lawful president of the United States. Uh, was that illegal? Was it ethical? Bad lawyering?

Plus: it’s sort-of news that Allen Weisselberg’s attorney said he “expects” more indictments, why Donald Trump is suing his niece Mary, and campaign finance indictments are rare but not as rare as two presidential pardons.